New HSE guidance opens up ‘a minefield of uncertainty’

New Health and Safety Executive (HSE) guidance limiting the circumstances in which directors and managers should be prosecuted would create “a minefield of uncertainty”, claimed a public law specialist.

The HSE guidance for its inspectors concerned the investigation and prosecution of health and safety offences by individuals. The document can be viewed on the Centre for Corporate Accountability’s (CCA) website at www.corporateaccountability.org.

The guidance, which came into effect on 1 July 2003, says that prosecution is in general warranted where the individuals have shown “wilful or reckless disregard for health and safety requirements, or there has been a deliberate act or omission that seriously imperilled their health/safety or the health/safety of others”.

However, this has caused concern with the CCA and with lawyers, because none of the key offences actually require evidence of ‘wilfulness’, ‘recklessness’ or ‘deliberation’. The key offence for which a director or senior manager can be prosecuted (Section 37 of the Health and safety at Work Act 1974) requires instead only evidence of “neglect” or evidence that the director or senior manager was aware that the company was committing an offence and simply turned a blind eye.

“There’s a very real risk that the guidance will create a minefield of uncertainty for HSE investigators and prosecutors,” said John Halford, a solicitor specialising in public law at London firm Bindman and Partners. “For instance, while it indicates that prosecution will normally be appropriate where there is ‘wilful’ or ‘reckless’ disregard of health and safety law, or a ‘deliberate act or omission’ with potentially serious consequences, these critical terms are not defined and can be interpreted in a number of different ways.”

According to the CCA, the HSE guidance also appears to contradict the Code for Crown Prosecutors, to which the HSE claims to adhere. According to the code, there are two questions that must be considered: is there sufficient evidence to provide a realistic prospect of conviction?; and only if the answer to the first question is ‘yes’, is it in the ‘public interest’ to prosecute?

The HSE guidance, however, indicates that a prosecution should only take place if there are public interest factors that justify it. The CCA argues that this reverses the normal presumption that prosecution will follow once sufficient evidence has been gathered. It is not clear why the HSE has decided to apply the ‘public interest test’ in this manner.

According to Halford, that code “cannot easily be reconciled with the HSE guidance”. He argues that the guidance indicates that lines of enquiry about actions and failures by individuals might not even be pursued if an inspector considers that prosecution may not ultimately be in the public interest. “This puts the cart before the horse, muddling what should be a clear, two-stage, decision-making process,” he added.